Las Vegas Sun

240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Las Vegas Sun and International Printing Pressmen and Assistants Union of North America, Local 284. Case 31-CA-3704 February 25, 1974 DECISION AND ORDER By MEMBERS FANNING, KENNEDY, AND PENELLO On September 10, 1973, Administrative Law Judge Stanley Gilbert issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions and a supporting brief, and Respondent filed cross-exceptions and a brief in support thereof and an answer to General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge only to the extent consistent herewith. We do not agree with the Administrative Law Judge's finding that Foreman Wilson's April 11, 1973, admonition to 4 to 6 employees of the 24- employee unit that they keep their noses clean and not get fired, that "your overtime will probably be cut down, the company will probably make things miserable for you so you'll quit, so you won't be around to vote," warrants the remedial order recommended by the Administrative Law Judge in the circumstances of this case. Employee Chase, upon whose credited testimony the Administrative Law Judge found the foregoing, also testified that dust a few weeks earlier, in March 1973, before any of the employees met with the union organizers for the first time, he and three other employees2 had engaged in conversation with Wil- son at a cocktail lounge. According to Chase, the employees then told Foreman Wilson that they would like to organize, to which Wilson responded that he would like to see that happen so they would have a competent crew and that he would like to see the men make more money. Thereafter, on April 11, when the employees arrived at work wearing union buttons, Wilson was naturally moved to respond to the open declaration I The Administrative Law Judge's finding that Respondent Foreman Stevenson's query to employee Degler as to the progress of the union campaign was noncoercive is based partly on Stevenson 's well-known sympathy with the union cause This finding is buttressed by the fact, not mentioned in the Administrative Law Judge's Decision, that, after Degler responded to Stevenson 's query, the latter wished him luck in helping to organize the employees of organizational activity. Indeed, Chase testified that he felt that Wilson was advising them as to how to conduct themselves, and that Wilson's tone was not threatening. Clearly, this conversation was merely a related sequel to the earlier discussion in March when the employees had themselves consult- ed Wilson about their interest in a union. We believe that whether the conversation warrants a finding of coercion by the Respondent requiring a remedial order it must be considered in the context and circumstances in which it occurred. It was not against a background of unfair labor practices or in concert with statements of management as part of an overall coercive campaign to undermine the Union. The employees would have readily recognized the advice offered by Wilson as coming from one sympathetic to their cause expressing his personal views rather than from a spokesman of management conveying its attitude. Under these circumstances, we do not believe that this isolated conversation and the friendly well-meaning advice offered by a low- level supervisor to a small group of employees, without the knowledge or encouragement of manage- ment,3 justifies the issuance of a remedial order. Accordingly, contrary to the Administrative Law Judge, we shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER FANNING, dissenting: For the reasons set forth in my dissenting opinions in Walgreen Co.4 and Fearn International, Inc.,5 I would, unlike my colleagues, adopt that portion of the Administrative Law Judge's recommended Order remedying the unlawful 8(a)(1) threats uttered by Respondent Foreman Wilson towards several em- ployees during the organizing campaign. My col- leagues' reasoning that the absence of higher level management authorization for or condonation of Wilson's isolated remarks helps to render such remarks noncoercive is erroneous. The essence of unlawful coercion in a pure 8(a)(1) violation is in the impact of the respondent's action on the employees to whom it is directed, not in the existence or absence of respondent's union animus.6 In the instant case, Respondent Foreman Wilson, in the midst of an 2 Including Petak , who was also present at the April 11 discussion 3 Indeed, the record discloses no hostility by Respondent to union activity which might prompt the remarks by Wilson 4 Walgreen Co, d/b/a Globe Shopping City, 203 NLRB No 36 5 Fearn International, inc, Eggo Foods Division, 209 NLRB No 37 6 The Cooper Thermometer Company, 154 NLRB 502 209 NLRB No. 38 LAS VEGAS SUN 241 organizational drive, clearly communicated to four to six employees-hardly a small minority in a 24- man unit-a hostile respondent attitude toward the union campaign and threats by Respondent to take adverse action against unspecified employees. The fact that Wilson was sympathetic to their cause is immaterial; the employees still had every reason to believe that Wilson, as a man privy to higher levels of management, was painting an accurate picture of what might befall them if they continued their concerted activity. By any objective analysis, Wil- son's remarks tended to coerce the employees in the exercise of their Section 7 rights and are properly the subject of an appropriate remedial order. I would adopt the Administrative Law Judge's recommenda- tion of such order. DECISION I STATEMENT OF THE CASE STANLEY GILBERT, Administrative Law Judge: Based upon a charge filed on April 16, 1973, by International Printing Pressmen and Assistants Union of North Ameri- ca, Local 284, hereinafter referred to as the Union, the original complaint herein was issued on May 22, 1973. An amended charge was filed by said Union on May 29, 1973, and an amendmen. to the complaint was issued on May 31, 1973. The complaint, as amended, alleges that Las Vegas Sun. hereinafter referred to as the Respondent, violated Section 8(a)(1) and (3) of the Act.' By its answer Respondent denies that it committed the unfair labor practices alleged in the complaint.2 Pursuant to notice a hearing was held in Las Vegas, Nevada, on June 28 and 29, 1973, before me, duly designated as Administrative Law Judge. Appearances were entered on behalf of all the parties. Briefs were received from the General Counsel and Respondent on August 17 and 16, 1973, respectively. Upon the entire record in this proceeding and my observation of the witnesses as they testified, I make the following: FINDINGS OF FAC I 1. BUSINESS OF RESPONDENT Respondent is a Nevada corporation with its principal place of business in Las Vegas, Nevada. It is a newspaper publishing company holding membership in or subscribing to interstate news services and publishing syndicated features or advertisements of nationally sold products. It derives gross annual revenues in excess of $200,000. As is admitted by Respondent, it is, and at all times material herein has been, an employer engaged in 1 During the course of the hearing, par 8(d) of the complaint was amended to change the date of April 29, 1973, to March 22, 1973. 2 Although the answer denies par. 5(a) and (b) of the complaint, Respondent has stipula'ed to 5(a) and during the course of the hearing represented that it was raising no issue with respect to 5(b). 3 As indicated hereinabove, although Respondent in its answer denied the supervisory status of Stevenson, in the course of the hearing Respondent commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED As is admitted by Respondent, the Union is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The complaint alleges that Respondent violated Section 8(a)(1) of the Act on March 22, 1973, through John E. Stevenson, an assistant foreman, by unlawful interrogation of an employee .3 The complaint further alleges that Respondent, through the conduct of admitted supervisor Sherral Wilson, foreman of the mailroom, unlawfully threatened employees with economic reprisals for their union activity and unlawfully interrogated an employee on or about April 11, 1973.4 The complaint also alleges that on or about April 13, 1973, Respondent violated Section 8(a)(3) and (1) of the Act by reducing the working hours and changing the work schedule of the employees in the mailroom because of their union activity. All of said allegations were denied by Respondent. B. The Organizational Activity The Union sought to organize the employees in Respon- dent's mailroom commencing on or about March 15, 1973. On that date, representatives of the Union met with seven of the mailroom employees. A number of them again met with representatives of the Union on March 22. On April 11, union representatives met with a large majority of the mailroom employees, which at that time apparently numbered approximately 18. The employees present voted to notify Respondent that they desired to be represented by the Union. Buttons signifying that the wearer was in favor of union representation were distributed to them and on April 11 all of the employees who worked on the evening shift wore said buttons. On April 12, a representa- tive of the Union contacted Respondent's General Manag- er Burt Buy and requested a meeting to discuss representa- tion of mailroom employees. Buy refused the request. C. Resolution of the Issues Employee Edwin Degler testified that he had a very brief conversation with Stevenson on March 22, 1973, which testimony is uncontradicted and is credited. It appears that it must have occurred shortly after the meeting the employees had with the union representatives on that date. According to Degler's credited testimony, Stevenson asked represented that it was not contesting his supervisory status. 4 General Counsel elicited no testimony with respect to the allegation of unlawful interrogation by Wilson and, in his brief, General Counsel made no reference to any testimony which would support said allegation. Therefore, it will be recommended that said allegation (par. 8(c) of the complaint) be dismissed. 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him how the union organization was going, and he replied that out of 18 employees 18 had signed "petition cards." It appears that the employees had reason to believe that Stevenson favored union representation and that this was the sole instance of any interrogation of employees by Stevenson. In the circumstances, it does not appear that his inquiry of Degler could have reasonably interfered with, restrained, or coerced Degler within the meaning of Section 8(a)(1) of the Act. This conclusion is based upon the casual nature of their conversation, its brevity, Stevenson's known favorable attitude toward union repre- sentation, the isolated nature of this incident, and Stevenson's position at the lowest level of Respondent's supervisory personnel. As aforementioned, all of the employees on the evening shift of April 11, 1973, wore union buttons at work. During a breaktime, Foreman Sherral Wilson held a conversation with from four to six of the employees According to employee Charles Chase, Wilson told them "to make sure that we keep our nose clean and don't get fired." Chase further testified that Wilson added "your overtime will probably be cut down, the company will probably make things miserable for you so you'll quit, so you won't be around to vote." Charles Petak, another employee, testified that Wilson warned them to be on their toes at all times and that if they did not keep themselves "clean," he would not be able to save them. Respondent did not call Wilson as a witness and offered no explanation for the failure to do so. Although there are variations in the testimony of Chase and Petak, their testimony is credited as being different fragments of the statements made by Wilson. It appears that the employees had reason to believe that Wilson favored their obtaining union representation, and Respondent argues that the statements made by Wilson were not unlawful, since they were made in a friendly conversation by a supervisor who was sympathetic to their desires for union representation. In my opinion, these circumstances add to, rather than detract from, the coercive effect of Wilson's statements. It is reasonable to assume that they must have believed that he was confiding to them management's attitude toward unionization of the mailroom, to which attitude he, as supervisor, was privy. Thus, while he himself did not threaten to take economic reprisals against them for adherence to the Union, he was warning them of what action management might take against them because of their protected activity. It is concluded that his statements can and should be equated with threats of economic reprisals for union activity.5 Consequently, it is concluded that Respondent, by the conduct of Wilson on March 11, did threaten economic reprisals for union activity in violation of Section 8(a)(1) of the Act. There is no dispute that commencing on April 14, 1973, the Respondent changed the work schedule of the mailroom employees and reduced the number of work hours of the employees in the mailroom as a whole. The General Counsel does not contend that any particular individual or individuals were singled out for such 5 Respondent cites Utrad Corp v N L. R B, 454 F 2d 520(C A 7, 1971) in support of its argument The facts in said case are considerably different from the facts in the instant case In addition, it is noted that in the Board treatment. General Counsel contends that this action was taken in reprisal for the employees seeking union repre- sentation and engaging in activities on behalf of the Union. The Respondent contends that its action was motivated solely by economic considerations . Two factors support General Counsel's contention, the timing of the change in scheduling by a notice posted the day after management testified it learned of the union activity, and Wilson's warning on April 11 that management might cut employ- ees' overtime, ostensibly because of their adherence to the Union. These elements are sufficient to make out a prima facie case. However, the credited testimony of Respon- dent's witnesses as to the events leading up to the decision to change the mailroom schedules and Respondent's records rebut the prima facie case and lead me to the conclusion that the change in the work schedule was not discriminatorily motivated. Duane Langeliers, Respondent's comptroller, Burt Buy, Respondent's general manager, and Jesse Dixon, Jr., circulation manager, credibly testified to the events that led up to the decision to change the schedule. According to their credited testimony, Langeliers, in December 1972, became alarmed over the rising labor costs in the mailroom and, in late December, reported this to Buy. Dixon was called into the meeting and they discussed means of increasing the efficiency of the mailroom. In February 1973, Langeliers again made a report with respect to the labor costs and there was a further discussion of the problem. At that point, Buy instructed Dixon to reduce the labor costs in the mailroom. In March there was another meeting with respect to the labor costs and again Dixon was told to effect a reduction in the operating costs in the mailroom. On April 6 there was another meeting between the three and Dixon was instructed to take over daily control of the operations of the mailroom. Up to that time, Dixon, as circulation manager, was responsible for the operations of the mailroom but had left its day-to-day operations to Wilson as its foreman. Dixon testified that he spent 2 hours a day during the week between April 6 and 13 studying the operations of the mailroom to determine the reason for the high cost. This testimony is uncontradicted and is credited. It appears that he came to the conclusion that there were man hours wasted because at certain periods of the day there were more men in the mailroom than were required for the workload. Consequently, on April 13, he posted a schedule for the next day (and followed the same procedure thereafter) in which he staggered the work hours so that the personnel could be more efficiently employed. The records of Respondent show that after this procedure was instituted a substantial reduction in the cost of operating the mailroom was effected. All three of said witnesses of Respondent testified that they had no knowledge of union activity in the mailroom until April 12, 1973. This testimony is credited. Although it appears that both Stevenson and Wilson had knowledge of the activity, it is inferred that they did not transmit this knowledge to upper levels of management, apparently decision, Utrad Corp, 185 NLRB 434, 439, it is stated "The fact that the parties may have been on friendly terms does not bar a finding, if, under all the circumstances, the inference of coercion is a reasonable one " LAS VEGAS SUN 243 because they favored the employees' desire to obtain union representation. Dixon's delay between April 6 and 13 in implementing Buy's directive to lower the mailroom's cost is explained by his credited testimony that he spent that period of time studying the mailroom operations. It appears that while a number of the employees have had increased work hours in the weeks following the week in which the change in scheduling was put into effect, it appears that the number of men employed in the mailroom has been reduced and that the costs have remained lowered. Thus, it is my opinion that, while the timing of the change in schedule and Wilson's warning about hours being cut cast suspicion on Respondent's motive in changing the work schedules, the motive therefor was solely economic and nondiscriminatory. Consequently, it is concluded that the General Counsel has failed to sustain by a preponderance of the evidence the allegation in paragraphs 6 and 7 of the complaint that the Respondent discriminatorily reduced the work hours and changed the work schedule of the employees in the mailroom. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The unfair labor practice of the Respondent set forth in section 111, above, occurring in connection with its operations set forth in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY It will be recommended that the Respondent be ordered to cease and desist from engaging in the unfair labor practice found herein and take certain affirmative action, as provided in the recommended Order below, designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act on April 11, 1973, through the conduct of Sherral Wilson by threats of economic reprisals against employees for seeking union representation and for activities upon behalf of the Union. 4. General Counsel has failed to prove by a preponder- ance of the evidence the allegations in the complaint of unfair labor practices set forth in paragraphs 6, 7, and 8(c) and (d) thereof. [Recommend Order omitted from publication.]